When providing guidance to our members, it is common to advise that if an employee is out on leave under the Family and Medical Leave Act (“FMLA”), the employer should not be contacting or making demands of that employee while they are out. Contacting an employee while they are out on leave can open the employer up to claims under the FMLA, specifically an FMLA interference claim.

An FMLA interference claim arises when an employer unlawfully prevents, restrains, or denies an employee from exercising their rights under the FMLA. An FMLA interference claim can arise if an employer’s communication crosses the line from a brief, casual check-in with an employee to forcing an employee to work.

There are certain situations where employers feel that contacting the employee out of FMLA leave is necessary based on business needs. So, when does communication or action by an employer with an employee on FMLA leave become a violation?

Recent Cases Clarify Employer Risks Contacting an Employee on FMLA Leave

Three cases have been issued recently that provide some guidance regarding when continued communication with an employee during FMLA leave rises to a violation of FMLA.

Requiring Work During FMLA Leave Can Support an FMLA Interference Claim

Sutherland v. City of Pembroke Pines (S.D. Fla. Oct. 15, 2025) involved a teacher who was on bed rest due to a severe pregnancy-related condition that resulted in the teacher taking FMLA leave. While the teacher was on leave, the principal, as well as a curriculum specialist, pressured the teacher to provide lesson plans, respond to staff inquiries, and made the teacher justify her medical absence throughout the time she was taking FMLA leave.

The teacher, Sutherland, brought a lawsuit against her employer that included not only the FMLA interference claim, but also claims of discrimination based on race. The employer, City of Pembroke Pines, filed a motion to dismiss the lawsuit, and the court granted the motion to dismiss for the discrimination complaint; however, the court declined to dismiss the FMLA interference claim, citing prior case law holdings that ruled that an employer violates the FMLA when it requires an employee to perform any work during FMLA leave.

Changing Job Duties After an FMLA Request May Create Liability

In Alaska v. R1 RCM, Inc., (N.D. Ill. Mar. 11, 2026), the courts issued a similar finding. In this case, the court found that the employer was in violation of the FMLA when it increased an employee’s workload after the employee requested to use intermittent leave to care for a son, and the employer also engaged in additional negative conduct with respect to the employee.

The employer in the case argued that they could not have violated the employee’s rights under the FMLA because the employer had granted the FMLA leave request and provided leave. The court rejected the employer’s argument and determined that the employer’s act of significantly altering the employee’s work activities in relation to the employee’s request for FMLA leave can constitute an employment action that can be used to show FMLA interference.

Reminders During Intermittent FMLA Do Not Constitute FMLA Interference

In Shopek v. City of Minneapolis (D. Minn. Dec. 1, 2025), the court actually rejected the employee’s claims and found that the employer did not interfere with the employee’s FMLA. This case involves an IT employee who had ongoing anxiety, depression, and ADHD, who sued his employer alleging that the employer failed to accommodate his disability as well as interfered with his FMLA leave. The FMLA interference claim alleged by the employee was based on the following email communication from the employee’s supervisor, which read:

“I understand that you have been taking intermittent FMLA days, which is your right, and I fully support your need for medical leave. However, it is important to emphasize that these absences do not excuse you from your responsibilities as the supervisor of the team. As a leader, it is crucial that you demonstrate accountability and ensure that tasks are completed in a timely manner. I would like to discuss with you your plan for completing these overdue items and how we can prevent future delays.”

After hearing the evidence, the court rejected the employee’s FMLA interference claim on the basis that the email in question not only supported the employee’s use of FMLA but also simply reminded the employee that he needed to develop a plan to ensure that the work that he was responsible for was completed in a timely fashion. The court went on to detail that in the email, the supervisor also offered to meet with the employee to develop a plan to complete the work tasks. The court made it clear in its ruling that intermittent FMLA leave does not excuse an employee from the essential functions of the job.

What Can Employers Take Away From These Cases?

Be Proactive: Plan for Coverage Before FMLA Leave Begins

The main takeaway from these cases is that employers need to take a proactive approach when employees are going to be out on FMLA.

Employers understand that when an employee goes out on leave, there is going to be a hole, which can make it more difficult to get work done. Many employers fall into the trap of relying on the employee taking leave to ensure the work they are responsible for gets done. However, these recent cases show that the courts consider it the employer’s responsibility to ensure that coverage for the work is provided and that employers cannot expect or demand that employees fill the void created when they go out on FMLA leave.

Employers should also be proactive by working with the employee prior to FMLA leave beginning to create a plan to cover the employee’s responsibilities. Employers should use that notice period ahead of FMLA leave to work out how the employee’s responsibilities will be distributed while the employee is still at work and available to answer questions and provide guidance to the employees who will temporarily be taking on the leave employee’s responsibilities.  

Train Supervisors on Communication Boundaries

Another takeaway should be the importance of having managers and supervisors who are well-trained in understanding the ins and outs of FMLA leave. Managers and supervisors need to understand that employees must be relieved of all duties during their leave, and supervisors should understand that they are not allowed to make changes to an employee’s responsibilities when they request FMLA leave, especially in cases where it is intermittent FMLA leave and the new responsibilities imposed would increase the demands of the employee’s position.

Keep All Communications Supportive and Neutral

All communication related to FMLA leave should be supportive and positive. No communication should include words of frustration or disdain when discussing an employee’s use of FMLA. No communication should express any negative opinions or give the impression that the company resents, is upset, or questions the employee for using their FMLA leave.

Employers should also avoid using an employee’s FMLA leave as a negative factor in employment decisions, including discipline, scheduling, promotion, workload assignments, or termination. Even if the employer has legitimate business reasons for its decision, poorly worded communications can make it appear that the taking of FMLA leave influenced the outcome.

Do Not Allow Employees to Work While on FMLA

Employers should prohibit employees from maintaining communication that is work-related while they are on FMLA leave. If an employee is out on FMLA leave, and they request or attempt to be involved in meetings or reviewing work-related issues, the employer should, in a kind and empathetic manner, inform the employee that their request is denied, and when they return to work, the employer will ensure that the employee will be given the time to get back up to speed.

In Conclusion

Because FMLA interference claims can turn on the specific facts of each employee’s situation, employers should not assume that well-intended contact is always harmless. When communication during FMLA leave is necessary, employers should keep it limited, neutral, and administrative, and seek guidance from a trusted advisor or legal counsel before making requests that could be viewed as work-related or as interfering with an employee’s FMLA leave rights.

By: Cara Sheehan, Esq.

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